The three pillars of institutional arbitral liability : the weaknesses of present regulations and proposals for further reform

Abstract

This thesis analyses the issue of institutional arbitral liability from an interdisciplinary perspective, incorporating the legal, social, and economic dimensions of institutional functions. The point of departure for the main analysis is the assumption that the current institutional exclusion of liability clauses do not respond well to the multifaceted objectives underlying the performance of institutional arbitration actors (both arbitral institutions and institutional arbitrators). In view of this, the thesis identifies the optimal scope of institutional arbitral liability. It is hypothesised that the legal approach to institutional arbitral liability (focusing on the explanation of the contractual bonds and institutional activity through the lenses of various contract law theories) alone is insufficient to accommodate all aspects of institutional performance. It is argued that the contractual obligations of institutional arbitration actors should be analysed in view of the social and economic goals of institutional regimes. Social goals refer to the questions of authority and legitimacy of institutional arbitration (whether in its internal or external aspects), while economic aims refer to the traditional commercial function that arbitral institutions assume in the so-called "market" for arbitration services. Therefore, the thesis suggests that institutional arbitral liability should be based on the three pillars of institutional functions, namely: the legal, social and economic aspects of institutional regimes. The thesis also identifies the emerging public function of institutional arbitration vis-à-vis its traditional commercial function that for long tried to reduce institutional activity to a pure provision of arbitration services. The public function implies the growing private regulatory powers of arbitral institutions in and outside arbitration processes, as well as the increasingly exclusive institutional prerogatives in the administration of publicly oriented arbitrations. The public function supports the proposals for institutional arbitral liability provided in this thesis, as it requires certain public oversight of the fairness and accountability of the contemporary institutional arbitration processes.